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Court of Appeal considers witness evidence and judicial bias

Almost a year ago I wrote about Peter Smith J’s recusal in Emerald Supplies v British Airways, which was made all the more interesting because it came about following the judge’s trip to Florence and his lost luggage experience on the return flight.

More recently Peter Smith J has been in the news because of a letter he sent to Blackstone Chambers following an article that appeared in the Times after the lost luggage affair. That article was written by Lord Pannick QC (who practices from Blackstone Chambers). The judge’s letter came into the public domain when another case he was presiding over ended up in the Court of Appeal (Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz). (If you are interested, both the article and letter are reproduced in the judgment.)

It is not the judge’s letter writing activities that I want to concentrate on, but the Court of Appeal’s comments regarding witness evidence and judicial bias.

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz

This is a dispute between Mrs Harb and the Prince in relation to Mrs Harb’s alleged marriage to the Prince’s father when he was Saudi Arabia’s Minister of the Interior (he later became King Fahd) and whether she should receive money and certain property in return for not revealing details about that relationship. Mrs Harb alleged that she had agreed with the Prince that he would pay £12 million and transfer the title of two properties in Cheyne Walk, Chelsea, to her.

At first instance, Peter Smith J had to determine what Mrs Harb and the Prince had said in a conversation at the Dorchester hotel in June 2003. Did they enter into an agreement and, if so, who were the parties to that agreement and what were its terms? Also, when was the agreement to come into effect?

The court had the benefit of a number of witness statements and the cross-examination of some witnesses. However, the judge’s task appears to have been a difficult one because (according to the Court of Appeal):

All the witnesses had difficulty concentrating on the questions being put to them and in giving clear, concise answers.

The Prince did not attend for cross-examination, despite being ordered to do so.

In those circumstances, perhaps it is understandable that the judge accepted Mrs Harb’s evidence and found against the Prince.

Grounds of appeal

The Prince’s appeal was based on a number of grounds, including that the trial judge was:

Wrong to reject the evidence explaining the Prince’s failure to give oral evidence (he had a letter saying members of the Royal Court of Saudi Arabia could not give oral evidence in a foreign court), which led the court to give no weight to important aspects of the Prince’s evidence.

The court allowed the appeal because of serious “deficiencies in the judgment”, which means a retrial before a different judge.

Approach to evidence was unsatisfactory

The court concluded that the judge’s approach to evidence was unsatisfactory in a number of ways. Given the tone and extent of the remarks, they are a clear reminder of what not to do when you are faced with witness evidence, whatever dispute resolver’s hat you are wearing.

For example, with regard to the Prince’s failure to give oral evidence:

“It is almost inevitably the case that evidence on a disputed question of fact which has not been tested in cross-examination will be given less weight than that which has been tested… we do not think that the mere fact that the Prince did not make himself available for cross-examination inevitably justified the judge in preferring the evidence of Mrs. Harb and Mrs. Mustafa-Hasan to that of the Prince whenever they were in conflict… In a case where the evidence on both sides is less than satisfactory (as it was in this case), it is the responsibility of the judge to assess the witnesses’ evidence on each issue and to test it by reference to any contemporaneous documents and the inherent probabilities before deciding where the truth lies. In this case it is entirely possible that, if the judge had approached the matter issue by issue, he would have preferred the evidence of Mrs. Harb and Mrs. Mustafa-Hasan whenever it was in conflict with that of the Prince, but that should have been the result of a careful consideration of the evidence rather than a blanket preference for one witness over another.”

On the question of whether the parties had entered into a binding agreement:

“…Mrs. Harb’s general reliability as a witness was open to serious question…

…[the judge] failed to identify in sufficient detail the questions that needed to be answered if he were to decide whether an agreement of the kind alleged by Mrs. Harb had been made. In addition, he failed to carry out a proper evaluation of all the evidence in order to test its strengths and weaknesses…

…the judge failed to draw together the evidence from the various different sources and analyse it in order to make his findings in relation to individual issues. The evidence, not just of the witnesses but also of the documents, pointed in different directions…

…the judge, in effect, took a short cut. Having decided that Mrs. Harb was a reliable witness, he accepted that she had made out her case in all respects.”

The court concluded by stating the judge had:

“…failed to examine the evidence and the arguments with the care that the parties were entitled to expect and which a proper resolution of the issues demanded.”

Damning words indeed.

The Court of Appeal explained that it is a tradition for courts to hand down judgments that “describe the evidence and explain the findings”. This means a judgment should demonstrate that the court has addressed the essential issues and how they have been resolved, especially where issues turn on oral evidence and where the credibility of a witness (particularly a main witness) is challenged. Those are useful thoughts for decision writing too where reasons are required.

Apparent bias

In July 2015, during the trial of Mrs Harb’s dispute, Peter Smith J recused himself in Emerald Supplies v British Airways. The newspaper article and letter I referred to at the start followed (in September and December respectively). This led the Prince to include an addition ground of appeal: apparent bias.

The starting point for the appearance of bias is Lord Hope’s test of the fair-minded and informed observer (from Porter v Magill). The Prince argued that there was apparent bias here, in part because the Prince was being represented by barristers from Blackstone Chambers and there was a real possibility that the judge “harboured a personal animus against all members of Blackstone Chambers” (the Prince had also been represented by Lord Pannick). Further, the judge made some amendments to his judgment after reading the article, which may have been influenced by the article.

At the hearing, Lord Grabiner (on the Prince’s behalf) referred to how a reasonable client may react to this story, suggesting he would say, “I hope there’s some other judge who can hear my case”.

In response, Mr Hollander (on Mrs Harb’s behalf) suggested that since there are 100 barristers in chambers, if you accepted that the judge was biased against any of those barristers “in any case at any time”, then a client could not expect a fair trial. A fair-minded observer would not take such an extreme view and it was “fanciful” to suggest otherwise.

The Court of Appeal decided this ground of appeal should fail but, in doing so, it was extremely critical of the judge for his conduct, suggesting it was a “disgraceful letter to write” and showed a “lack of understanding of the proper role of a judge”. However, the fact that he acted in such a “deplorable way” was not a reason to allow the bias allegation to succeed. The court felt the case was fact-specific, although it accepted that one could assume that:

“…the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But… the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.”

Take aways

Given some of the comments about the judge’s letter, I am not surprised this judgment has attracted a lot of attention. However, I found it interesting that the appeal was not decided on the basis of the allegations of bias, but because the court found that the trial judge had not dealt adequately with the witness evidence.